REQUEST FOR QUOTATIONS FOR RETAINER SERVICES – PART B
VERSION 1.5, MARCH 2008
LEGAL TERMS & CONDITIONS
RFQ FOR RETAINER SERVICES
PART B – LEGAL TERMS & CONDITIONS
Page 22
VERSION 1.5: March 2008
REQUEST FOR QUOTATIONS FOR RETAINER SERVICES - LEGAL TERMS & CONDITIONS
ARTICLE 1
INTERPRETATION
1.1 Definitions
Unless the context otherwise specifies or requires, for the purposes of this Agreement, the following terms shall have the meanings set forth in this Section:
(a) "Agreement", "this Agreement", "the Agreement", "hereto", "hereof", "herein", "hereby", "hereunder", and similar expressions means the fully executed RFQ, including Parts A, B and C (Forms 1 to 8), and includes the Consultant’s response to the RFQ.
(b) "Approval", "Approve", "Approved" and similar expressions means the approval of or approved by the Ministry in writing in accordance with the provisions of this Agreement, including Section 3.3.
(c) "Business Day" means any day which is not (i) a Saturday or a Sunday or (ii) a day observed as a holiday under the laws of the Province of Ontario or the federal laws of Canada applicable to the Province of Ontario.
(d) "Change Order" has the meaning ascribed thereto in Section 9.1.
(e) "Change Request" means a written request prepared by or on behalf of the Consultant to change or add new work or material in addition to that provided for in the Work Item Order and the Agreement hereto; provided that no such request shall be implemented unless and until it has been Approved by the Ministry.
(f) "Claim" means any claim, demand, liability, damage, loss, cost, expense, suit, action or cause of action.
(g) "Completion Date" shall be deemed to occur for each Work Item when the Ministry and the Consultant are satisfied that, to the best of the Consultant's knowledge at that time, the Contractor has rectified all imperfect work, or as otherwise agreed between the Ministry and the Consultant.
(h) “Conflict of Interest” has the meaning ascribed thereto in Section 4.9.
(i) "Consultant" means the Respondent whose Quotation was accepted by the Ministry.
(j) "Consultant's Commencement Date" means the date of execution of the Agreement by all parties.
(k) “Consultant’s Intellectual Property” means Intellectual Property owned by the Consultant prior to its performance of the Services or created by the Consultant during this Agreement but independently of its performance of the Services.
(l) "Default" means an event or condition (including an act or omission), the occurrence of which would, with the lapse of time or the giving of notice, or both, become an Event of Default.
(m) "Deliverables" means everything developed for or provided to the Ministry in the course of the Services, by the Consultant or its employees, volunteers, agents or subcontractors, including but not limited to any goods or services or any and all Intellectual Property and any and all concepts, techniques, ideas, information, documentation and other materials, however recorded, developed or provided.
(n) “Derivative Work” means a work based on the Consultant’s Intellectual Property including, without limitation, an adaptation, modification, translation, expansion, condensation or transformation, that if prepared without authorization, would constitute copyright infringement or infringement of any other Intellectual Property right;
(o) "Design Assessment" means a procedure that the Ministry may use to assess the quality of the Services.
(p) "Encumbrance" means any mortgage, lien (including any construction lien or certificate of action filed with respect thereto), pledge, charge, security interest, restriction, claim or encumbrance of any nature whatsoever.
(q) "Environmental Laws" means:
(i) any and all applicable federal, provincial, or municipal laws, statutes, regulations or by-laws including, but not limited to, the following: the Environmental Protection Act (Ontario), the Environmental Assessment Act (Ontario), the Gasoline Handling Act (Ontario), the Ontario Heritage Act, the Pesticides Act (Ontario), the Dangerous Goods Transportation Act, 1992 (Ontario), the Planning Act (Ontario), the Ontario Water Resources Act, the Transportation of Dangerous Goods Act (Canada), the Canadian Environmental Protection Act, the Canadian Environmental Assessment Act, the Endangered Species Act (Ontario), the Navigable Waters Protection Act (Canada), the Fisheries Act (Canada), the Conservation Authorities Act (Ontario), the Trees Act (Ontario), the Forest Fire Prevention Act (Ontario), the Lakes and Rivers Improvement Act (Ontario), the Provincial Parks Act (Ontario), the Cemeteries Act (Ontario), the Canada Wildlife Act (Canada), the Migratory Birds Convention Act, 1994 (Canada), the Pest Control Products Act (Canada) and the Environmental Contaminants Act (Canada);
(ii) all applicable rules, regulations, directives, protocols, guidelines, procedures, judgments, concessions, grants, franchises, licenses, agreements or any other government requirements, promulgated under or pursuant to any laws referred to in paragraph (i);
(iii) all applicable orders, decisions and exemptions rendered by Canada, Ontario or municipal governmental authorities promulgated under or pursuant to any laws referred to in paragraph (i) and relating to environmental matters pertaining to the Services; and
(iv) any other applicable laws, rules, regulations, policies, orders or decisions (including, Laws and Regulations) relating to environmental matters pertaining to the Services, and which (with respect to paragraphs (i), (ii) and (iii)), would, in the ordinary and usual course of the development, design and/or construction of a King's Highway in the Province of Ontario, be recognized, followed and/or implemented by the Ministry and applicable Provincial Advisors.
(r) "Event of Default" means a Default that has not been remedied within the cure period provided in Section 15.2 or Section 15.4, as the case may be.
(s) "Facility" means:
(i) that part of the provincial highway identified and described in the Work Item Order and all improvements, paving, signage, chattels, machinery, equipment, materials, supplies, tools, appurtenances and fixtures forming part thereof or otherwise relating or ancillary thereto;
(ii) all buildings, erections, detours, barriers, supports, work and other structures, whether temporary or permanent, from time to time erected or located on the Facility Lands, or otherwise used or required in connection with the Services;
(iii) all other physical plant, fixtures, appurtenances and tangible personal property, including inventories of any nature whatsoever from time to time contained on or attaching to the Facility Lands, or otherwise used or required in connection therewith; and
(iv) all mechanical, electrical and other systems installed, used or required in connection with any of the foregoing,
but shall expressly exclude the Facility Lands.
(t) "Facility Lands" means the lands on which the Facility is located and includes the lands, if any, acquired or to be acquired by the Ministry for the Facility.
(u) "Fee Schedule" means the manner and terms of payment of the Lump Sum Price as contemplated in Article 10, and as set out in Form 1.
(v) "Force Majeure" means any circumstance or act beyond the reasonable control of a party to this Agreement claiming Force Majeure, including but not limited to an intervening act of God or public enemy, war, blockade, civil commotion, fire, flood, tidal wave, earthquake, epidemic, quarantine restriction, a stop-work order or injunction issued by a court or public authority having jurisdiction, or governmental embargo, which delays the performance of any obligation created by this Agreement beyond its scheduled time, provided such circumstance or act is not expressly dealt with under this Agreement or does not arise by reason of:
(i) the negligence or wilful misconduct of the party claiming Force Majeure or those for whom it is responsible at law;
(ii) any act or omission by the party claiming Force Majeure (or those for whom it is responsible at law) in breach of the provisions of this Agreement;
(iii) lack or insufficiency of funds or failure to make payment of monies or provide required security; and/or
(iv) delays in obtaining Governmental Authorizations, which shall be dealt with in accordance with the provisions of Section 4.7,
provided further that, in the case of an event of Force Majeure affecting the Consultant, the Consultant notifies the Ministry as soon as possible and in any event within five (5) Business Days following the date upon which the Consultant first becomes aware (or should have been aware, using all reasonable due diligence) of such event so that the Ministry may verify same.
(w) “Government System” has the meaning ascribed thereto in Section 20.1.
(x) "Governmental Authorization" means any approval, authorization, consent, waiver, variance, exemption, license, filing, registration, permit, notarization, special lease or other requirement of any federal, provincial, or municipal governmental, quasi-governmental, judicial, public or statutory authority, commission, tribunal, agency, department, ministry, local board, body or entity pertaining to the Services, which shall be necessary to proceed with the Services or any part thereof which, in the ordinary and usual course of the development, design and/or construction of a King's Highway in the Province of Ontario, would be recognized, followed and/or implemented by the Ministry and applicable Provincial Advisors.
(y) "Hazardous Substance" means, but is not limited to, any solid, liquid, gas or other substance or emission which is a contaminant, pollutant, dangerous substance, liquid waste, industrial waste, hazardous material or hazardous substance which is or becomes regulated by Laws and Regulations or which is classified as hazardous or toxic thereunder.
(z) “Intellectual Property” means any intellectual, industrial or other proprietary right of any type in any form protected or protectable under the laws of Canada, any foreign country, or any political subdivision of any country, including, without limitation, any intellectual, industrial or proprietary rights protected or protectable by legislation, by common law or at equity;
(aa) "Laws and Regulations" means, in addition to Environmental Laws as defined hereunder, any and all applicable federal, provincial, or municipal laws, by-laws, codes, orders, rules, regulations or statutes affecting the Services, including, but not limited to, the Highway Traffic Act (Ontario), the Pay Equity Act (Ontario), the Construction Lien Act (Ontario), the Municipal Act (Ontario), the Aggregate Resources Act (Ontario), the Drainage Act (Ontario), the Public Transportation and Highway Improvement Act (Ontario), the Public Service Works on Highways Act (Ontario), the Labour Relations Act (Ontario), the Occupational Health and Safety Act (Ontario), the Workplace Safety and Insurance Act, 1997 (Ontario), the Bridges Act (Ontario), the Public Utilities Act (Ontario), the Public Lands Act (Ontario), the Registry Act (Ontario), the Land Titles Act (Ontario), the Surveyors Act (Ontario), the Surveys Act (Ontario), the Criminal Code of Canada and those relating to fire, safety, land use, health, labour, seismic design, conservation, parking, handicapped access, zoning, building, taxation and financing which, in connection with any of the foregoing, in the ordinary and usual course of the development, design and/or construction of a King's Highway in the Province of Ontario, would be recognized, followed and/or implemented by the Ministry and applicable Provincial Advisors.
(ab) "Lump Sum Price" means the aggregate price payable by the Ministry to the Consultant for an Assignment, in accordance with the terms and conditions of this Agreement.
(ac) "Management Plan" means the management plan developed by the Consultant in accordance with this Agreement for the implementation of the Services.
(ad) "Ministry" means Her Majesty the Queen in Right of the Province of Ontario as represented by the Minister of Transportation for the Province of Ontario and its permitted successors and assigns.
(ae) "Monthly Progress Report" means a monthly report of the Consultant in a form agreed to by the parties from time to time, which shall include the following with respect to each Work Item:
(i) a report on the status of the work and the degree of its completion, including a list of the major activities performed by the Consultant during the month, and a report concerning the status of its Occupational Health and Safety Plan;
(ii) a report on all identified deviations from the Technical Standards and Specifications and the Plans; and
(iii) a list of progress against deliverables achieved during the month.
(af) “Newly Created Intellectual Property” means any Intellectual Property created by the Consultant in the course of performance of the Services.
(ag) “Occupational Health and Safety Plan” means the occupational health and safety plan developed by the Consultant in accordance with this Agreement.
(ah) "Performance Appraisal" means an interim, annual or final performance appraisal of the Services as set out in Section 2.5.
(ai) "Person" means an individual, corporation, partnership, joint venture, association, trust, pension fund, union, governmental agency, board, tribunal, ministry, commission or department and the heirs, beneficiaries, executors, legal representatives or administrators of an individual.
(aj) "Plans" means the Work Item Order, Work Item Quote, Management Plan, and Occupational Health and Safety Plan.
(ak) “Professional Engineer” means a professional engineer licenced to practice in Ontario.
(al) "Provincial Advisors" means, collectively, the respective agents, advisors, consultants, engineers, auditors, employees, representatives, contractors, subconsultants, and workmen, as the context may require, of the Ministry.
(am) "Quality Control of Services" has the meaning ascribed thereto in Section 4.4.
(an) "Quotation" means the Quotation submitted by the Consultant in response to the Request for Quotations, and accepted by the Ministry
(ao) "Rate of Interest" means the general rate of interest on overpayment of taxes set pursuant to the Financial Administration Act in effect on the date that the payment went into arrears.
(ap) "Related Person" or "Persons related to each other" has the meaning ascribed thereto in the Income Tax Act (Canada).
(aq) "Request for Quotation" means the Request for Quotation and any revision thereto provided by the Ministry.
(ar) "Scope Change" means a Change Order or an Approved Change Request.
(as) "Services" means, without duplication, collectively, those functions, duties and services to be performed by the Consultant provided for in this Agreement, together with all Deliverables, and such deletions or additions made thereto from time to time pursuant to the terms of this Agreement.
(at) "Technical Standards and Specifications" means any and all requirements, specifications, standards, directives, protocols, guidelines, policy statements and procedures issued, utilized or adopted from time to time, by the Ministry or any federal, regional, municipal or local government, public or statutory authority, commission, tribunal, agency, department, ministry, body or other governmental unit or entity applicable to the Services or any part thereof which, in the ordinary and usual course of the development, design and/or construction of a King's Highway in the Province of Ontario, would be recognized, followed and/or implemented by the Ministry and/or applicable Provincial Advisors, including those requirements, specifications and standards set out in Part A, as such requirements, specifications and standards may be amended, supplemented or replaced from time to time.